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tv   [untitled]    February 24, 2012 9:30pm-10:00pm EST

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disavowed and stocks rebounded. according to the new york world, which maintained its innocence, a messenger had mysteriously come to the office of all the big city papers late one night bearing this official looking proclamation. most of them looked at it and said this doesn't look right. we're not publishing it. it's too late in the day. the president doesn't issue things at 8:00 at night. but the new york world and another democratic paper did, the journal of commerce. lincoln threw the world's editorial manton marble, one of his most virulent critics into jail, along with a "new york times" reporter and an old thorn in lincoln's side who had invented that lincoln had snuck in to baltimore as president-elect wearing a disguise. when he was told that howard was in prison, lincoln must have said okay, throw away the key. as it happened, henry ward beecher, the minister of the church in brooklyn told lincoln
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that indeed howard had done the whole thing himself with the hope of making some money. now he paid the price for both missteps, including fraud. he stayed in prison for a long time. and then to show how complicated this becomes, the governor of new york, a democrat named horatio seymour ordered the general put on trial in municipal court in new york city fortress pass, kidnapping, forcible entry, and inciting to riot. the poor judge who heard the case didn't quite know what to make of it. he sort of issued a half hearted ruling saying the suspension of the right of habeas corpus was in part unconstitutional and general dicks is subject to indictment. if a general can close down a civilian newspaper, then a civilian court can indict. but they didn't indict the general. nothing really happened. the world case remains something of a mystery, but it was one case in which lincoln himself is known to have signed that document that indicate head
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believed the line had been crossed separating press freedom from criminality and treason. now i realize i've offered an avalanche of evidence here. i don't want to convict abraham lincoln, especially to this distinguished audience of judges. so let me suggest here that in my own view, lincoln deserves to be judged not only by what happened, but what didn't happen next. just weeks after the world's case, he was renominated for second term as president. a lot of people thought that was itself an abrogation of power. no president since andrew jackson had sought or succeeded a second term. many people concluded that it was lincoln grabbing what was left of free speech, power of the people, and grabbing it all for himself. not unexpectedly, a brutal and
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divisive campaign followed. but during all of it, lincoln did absolutely nothing to suppress anti-republican, pro-democratic journalism, even when it called for armistice, recognition of the confederacy, denounced the emancipation proclamation, because then it was back to politics and press coverage as usual with no holds barred, no libel too extreme, no restrictions at all by the government. with some justification. at least in the minds of many of his contemporaries. lincoln might have postponed the election entirely. no nation before had ever staged a popular election in the midst of a civil war. it was unprecedented. but even with the american people, as he put it, partially paralyzed by a political war among themselves, he argued that if the rebellion could force us to forgo or postpone a national election, it might fairly claim to have already conquered and ruined us. the election went on. lincoln had no second thoughts,
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even when the new york world issued daily editorial attacks or published horrifically racist cartoons designed to convince voters that if lincoln were reelected, african-americans would rule the nation with whites subjugated into the servant class. part of a campaign of words and images designed to goad, frighten white supremacists to the polls. and it did. it worked. lincoln barely won new york state in 1864. he had done worse than he had done in 1860. but lincoln never interfered with the world's right to remain anti-republican and white supremacist in 1864. political wars might be ugly and divisive, but lincoln believed only civil war justified curtailment of freedom. er rastus corning of albany was wrong. abraham lincoln did not seek absolute sovereignty, mainly the restoration of the status quo
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antebellum. press censorship did not increase, it actually decreased. so i think the absence of interference in 1864 serves to vindicate, or at least leaven lincoln's record. he acted only when he thought the was in peril, not his own hide. he acted to prevent the defection of border states whose departure would have likely destroyed the country and ended any chance for reunification. he acted to prevent the disclosure of troop positions that might endanger his army by tipping off the enemy. and by the way, robert e. lee later confided that he had planned his entire invasion of pennsylvania in 1863, the invasion that led to the battle of gettysburg, by reading the philadelphia newspapers, to know where the union army was moving. in short, lincoln circumvented the constitution to save it.
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but he always did believe that once saved, it would again reign, as he put it, lest there be some uncertainties, after the rebellion is suppressed, the executive deems it proper to say it will be his purpose then as ever to be guided by the constitution and the laws. because as he said it in a joking way, no sick patient ever developed so strong an appetite for medics during a temporary illness as to persist in feeding upon them through the remainder of his healthful life. and raymond of the times who cheered the closing of newspapers agreed. the temporary surrender of these rights is a small price the pay for their permanent and perpetual enjoyment. in any future great national trial, lincoln predicted, compared to the men of this, we shall have as weak and as strong, as silly and as wise, as bad and as good.
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let us therefore study the incidents of this as philosophy to learn wisdom from, and none of them as wrongs to be revenged where. the press was concerned, did lincoln prove wise or silly? bad or good? at least he was wise enough to remain uncertain. one thing is certain. lincoln believed history, not the courts, quite frankly, would be the ultimate judge. so even as we uncover data about this neglected aspect of lincoln's presidency, i would suggest we remember not only to continue faithfully counting individual acts of suppression, and that tally is important, but to explore the overall policy and the culture. its self-imposed limits within the partisan press culture of the age in the unprecedented crucible of civil war. and do remember, as i submit this case to my friend chief
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judge judith kaye and judge lipman and judge rosenblatt, i feel the inevitability of judgment closing in around me, that lincoln never imposed official or national censorship policies beyond understandable control of the military telegraph. the administration considered each case as it came, to be sure acting too often and too harshly, erring on the side of better safe than sorry, but never imposed a blanket muzzle on the press. in judging the lincoln record we have to be certain not to casually apply 21st century rules to a 19th century crisis in and a 19th century press culture. the path to understanding this period requires us to strip away the layers of assumption that understandably obscure our understanding of the volatile press culture of the civil war era and the challenge that
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rebellion itself posed to majority rule and constitutional law. so in the effort to tone down an increasingly heated debate, i think we need to put ourselves in lincoln's position, presiding over a nation that is falling apart. trying to save the body politic. and as lincoln told albany, no doctor would ever sacrifice a body to save a limb, but they would sacrifice a limb to save a body. and in this effort, we might be guided by one of lincoln's own famous anecdotes, which i will close with, if i may. confronted once by a particularly vicious attack by another newspaper, the president was reminded of the story of the traveler who got lost in a thunderstorm. a thunderstorm so violent that it seemed the day of judgment had arrived. after one particularly loud clap of thunder, the frightened man
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dropped to his knees and offered prayer to which historians and judges alike might well say amen. oh lord, if it is all the same to you, please give us a little more light and a little less noise. newspaper shutdowns made a great deal of noise then and more noise now. but understanding the period that made politics and the press part of the same feuding family, a house divided and perhaps without his leadership, a house doomed to collapse may help us to see this new issue as well in an entirely new light. thank you all very much. [ applause ] >> stand up again. let's have another one. that was fantastic. really, really good. my goodness. talked about all the judges here
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in the room. you'd make a wonderful judge. what a presentation. circumspect, balanced, and with a holding that has withstood the passage of time. well done. well, i know that you would all enjoy sitting around this little table here, but it's too small, alas, for everyone in the room. so you're going to have two jins little round table with harold holzer. they're going to be seated there in just a moment. just to chat about what we've heard over the last couple of minutes. it's a wonderful talk, and it will be carried on a little further in an informal setting. so along with harold holzer and judge judith kaye, we'll have john walker who is now a senior circuit judge, formally the chief judge of the 2nd circuit
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of the court of appeals. as some of you now know, he does serve as a member of the judicial conference of the united states. he is currently a member of the conference's committee on international judicial relations, and is chair of its committee on judicial conduct and disability. and in new haven, at yale law school, he teaches constitutional litigation and legal writing, and is a director of the united states association of constitutional law. he's also, some may be reassured to know, is promoting the rule of law in china, the middle east and central and eastern europe. he's very much dedicated to this. we're glad that he's there as our ambassador, so to speak. before going on the bench, as some of you may know, but i didn't realize, he had been state counsel of the republic of
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botswana, also partner in carter and milburn and assistant secretary of the treasury in 1981. so will you all come on up here and take your places at the table. judge walker, judge kaye, harold holzer. [ applause ] >> still in the hot seat. >> still in the hot seat. >> fantastic. really, really fantastic. so, this will be the 42nd book? >> no,there will be one between the 41st and -- >> what will that be? >> a book called "emancipating lincoln" a published version of some lectures that i did at the department of afro-american studies at harvard last year for henry louis gates. >> how long will it be before we have this one? >> two years if i stop giving talks about it. >> and what's the adjective that
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goes before the word lincoln, if the one that precedes it is emancipaing and this one will not be convicting lincoln, what will it be called? >> it's actually called "uncivil wars: the press in the age of lincoln." >> i have a question. what was the -- can you be more precise on what the standards were that lincoln used in judging between political dissent, sedition and treason and how did he actually -- did he expound on this publicly? if so, can you tell us what he said about it? >> and i'm piggyback and add personal criticism too. >> we're getting a lot of feedback. >> is there a doctor in the house?
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>> i'll see what happens. >> keep your hand there. >> try that. >> you're very generously assuming that he had a set standard of rules and rationales. i haven't found any. cases were brought by generals independently of the commander in chief. he was later asked to ratify or disown or overrule. the post office that -- the post master general closed down the mails to exports to the confederacy. the old three-mic syndrome. i know it well. the war department acted. if there are standards, they are, number one, endangering union armies either on the march to washington or in hostile territory. >> there was a concern about the effect of speech on recruiting and desertion. >> yes. there was a concern that the
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expressions of -- >> was it an excuse they used? >> would have limited volunteerism and created more objections to the draft, such as we saw flame into violence in new york and some upstate cities in connecticut in riots that took place when the draft was first instituted. >> but what was the legal standard? what was the articulated standard? >> the legal standard -- i shouldn't have said let there be no noise and light, whatever that anecdote was. i'm paying the price. the legal standard was the law of war, as lincoln put it. he was the commander in chief in the time of a rebellion. that gave him leave since the ability to suspend the writs ambiguously written, it's in the congressional section, no one knows why it's in the congressional section. it doesn't mention congress. so he had the right to suspend the writ in an absolute emergency. he could have called congress back into session to ratify it
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earlier, but there was some elections still taking place and he didn't want congress to come back into session. >> if you could end your talk this evening with a really startling number, an array, of incidents of suppression. all of this just went to acts of war? >> yes. well, some of the 300 that i have counted included mob attacks that were unrestrained or encouraged. it was a routine. and by the way, i have left out the whole area of confederate suppression. the confederacy was practically a police state, much more so than the union. in places like harper's ferry, virginia, which is an extreme, i'm not even sure if it had a newspaper. it would be a fun thing for me to find out. but harper's ferry is the town that changed hands most often during the civil war. something like 30 times. every time another army would take a town, the soldiers would do two things. have a lot of liquor and burn down the newspaper.
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the union troops burned down pro-southern newspapers in kentucky, mississippi, georgia, and confederate troops burned down newspapers in pennsylvania and maryland. >> how much do you think control of the press affected the outcome of the war? and this is a question of steven kaye's daughter. she gave this to me as i sat next to her. >> that's a very, very good question. >> i thought so too. >> i'm sort of sorry she asked it, because it's a hard one. i think the original suppression, and i did it out of order chronologically. i decided on my own dramatic arc tonight. but the first acts which weren't objected to, which i think encouraged the administration, more such acts were in maryland. lincoln suspended the writ because union soldiers on the march from massachusetts to washington were attacked on the streets of baltimore. where he himself had been threatened, and decided not to go publicly through baltimore. people died.
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massachusetts volunteers. on the very train crossing that he was going to take. the governor of maryland, governor hicks, came to lincoln and said, i think your troops should go a different way. and lincoln got furious, and he said, my troops are not birds. they can't fly. they are not moles, they can't dig under the earth. they shall go through baltimore. and he decided that he had to prevent the state from seceding and isolating washington. it was now a war. this territory was threatening to join a rebellion against the legally and constitutionally elected government. so he suspended the writ in maryland. he arrested the editors. he arrested john merryman, the famous merryman case which inspired no less than two books in the last month. and, you know, whatever tony ruled about producing the writ for merryman, he stayed in prison. me
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merryman wanted to blow up bridges to prevent troops from crossing. if the maryland legislature had been allowed to sit, they would have voted for secession. would secession. >> the question i had goes back to what we were discussing earlier. my understanding is after the case, there was this meeting in albany that you described, and there was something called the albany resolve. and lincoln reacted to that and tried to delineate between the kind of conduct that warranted suppression and the kind that didn't warrant suppression. a similar thing happened after the chicago times incident, as well. in each case, landiman was not kept in jail. and the chicago times situation was resolved in chicago. but my understanding is that he did make some kind of statements about what he was doing and why he was doing it at that time.
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>> do you think that's too compound a question in form? >> i'm trying to lead into whether there were standarding. >> he's creating them as he's going along and in belated response, he had no idea, and we have no idea, whether it had apimpact. he didn't suppress newspapers because he didn't come from the free speech. he sort of liked it. he liked debating in the press and engaging crowds. he was petrified that the country itself would fall apart if sedition was allowed, disloyalty. >> i was going to ask you to comment on the milieu
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been read. the answer is, they had been read. the postmaster was reading the papers first and delivering them later. he was introduced to the world beyond his up to by the newspapers that covered springfield and chicago and even washington. it awakened the world in him, but it awakened it in a way that was extremely partisan. he read democratic and republican papers. in that world, he developed greater ambitions. i think they were fueled by what he read was possible from the newspapers.
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of course, educated himself in the law just as he educated himself in the bible, geometry, shakespeare. >> the military thought this was necessary for the war effort in one way or the other, guided or misguided as it might have been. but was that because lincoln created an atmosphere that said go ahead and do it or was it because they were going to do it and he would react to it and perhaps allow it or perhaps not allow it? >> lincoln is known as the great pardoner when it came to deserters who had death sentences imposed on them. by the same token, he was probably the biggest executioner in the history of the military, because a lot of people who are accused and convicted of desertion were shot. he was always walking a fine
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line between adherence to his view of the law and morale building. so in letting generals have their way, he was recognizing that they were on the ground. he didn't have instant access to the conditions on the ground, and until they proved themselves inept, as so often they did, like burnside, who had been banished to the west because he had done such a bad job in the east. this is the guy that lost the battle of fredericksburg. he was walking this fine line, and the chicago times was a bad idea. he recognized that immediately. >> you used the word passive a few moments ago and reminded me of a bell that kept ringing as i was lping to your really fabulous remarks. the editors seemed so passive. who was rising up to defend the great freedom of speech and first amendment? where were they? >> in prison, in some degree.
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[ laughter ] >> but they weren't all in prison at the same time. so who was there rising up? >> judge, i think there weren't that many rising up. i haven't found them. butly concede, and i think it has to be understood there was a chilling effect, that the democratic editors were not all convinced it was only the traitors. they were worried that any expression of political opinion against the republicans, which was their normal way of doing things would get them into trouble. so you don't see after a while the democratic press objecting to the rule of law, because the most radical democratic editors, meaning the most extreme right wing democratic editors aren't considered to be treacherous. >> let me ask this. we're a bunch of lawyers and judges here. and most people have said over
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the years, at least in modern times, that all the great societal issues end up in court. what strikes me about what you said is how little ended up in court during that period. during that period we didn't have the application of the first amendment to the states. but state courts were open. one would think these issues would be litigated constantly in state courts. >> there are so few examples of it. and again, the wonderful example that i cited tonight of governor seymore throwing one of these cases into the municipal court is sort of common, because no federal court is going to hear it. and the courts in the states where post of this suppression is taking place, maryland, missouri, kentucky, are really not in operation. the military courts have taken over the jurisdictions and,
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again, with the writ of habeas corpus, three times lincoln has free reign to have people arrested by the military and tried by military tribunals. >> i have the privilege of having judge rosenblatt in view who is signaling it's time to conclude. so let me ask you to fast forward to the internet age, where everyone is a journalist today. so how do we apply some of the lessons to the world of today? >> there is no world today that equals the threat to this country that existed between 1861 and 1865. we tend to think of it because of the sugarcoated ways the civil war is still viewed by many people as this romantic
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struggle between southern chifalary and northern freedom loving people and the fight for freedom of enslaved people. but that view doesn't get into the danger that people felt, that constitutional government was going to end, and that the government, if split once, would split five times and this great experiment, which lincoln believed, you know, lincoln was an american exceptionalist, an argument we're having again with all the candidates and he believed the american example would light the world as he put it, if it was shown that it could be perpetuated. if you draw an example, if the situation would ever occur again, we would be severely tested to protect the constitution and maybe the patriot act as our current aplog, but that in the end, overreaction is sort of inevitable, because lincoln
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doesn't have the benefit of seeing the outcome in 1861. >> can i just say, i don't think i've ever been treated to such a fab mouse exposition of an historical event, period, as we have had tonight. thank you so much. [ applause ] >> i think we'll have time at the end for some audience participation, so to speak. and the next phase of the program, will judge wesley please come forward. >> i don't want to introduce you when you're sitting out there, i want to introduce you when you're over here.

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